IN THE CASE OF: BOARD DATE: 9 January 2024 DOCKET NUMBER: AR20230004528 APPLICANT REQUESTS: in effect, his DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 20 August 2004 corrected to show: • Item 26 (Separation Code) a disability related code in lieu of JFX • Item 28 (Narrative Reason for Separation) disability discharge in lieu of personality disorder APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • posttraumatic stress disorder (PTSD) checklist • patient receipt • DD Form 214 • K_ L_ letter of support • D_ L_ letter of support • patient care summary • Stellate Ganglion Block Treatment for PTSD at Department of Veterans Affairs (VA) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He is requesting that his separation code and narrative reason for separation be changed to reflect that he was suffering from a service-related auditory processing disorder and service-related PTSD. His DD Form 214 should be corrected to reflect that he did not have a personality disorder. When discharged, his DD Form 214 stated JFX/personality disorder due to improper diagnosis. b. He was suffering from PTSD and was wrongly diagnosed. He deployed in support of a contingency operation. He served in Kuwait from February 2003 to September 2003. He was told by the Army doctor that he had a personality disorder, but he does not. At the time of his discharge, he was suffering from PTSD and was convinced under duress by the Army psychiatrist to accept this erroneous diagnosis. He does not and did not fit the diagnostic requirements for the personality disorder by DSM definition, but he did not know to question. Subsequent treatment for PTSD with a stellate ganglion block procedure after scoring a PCL-5 rating of 41 and the diagnosis of sensorineural hearing loss has allowed him to clearly see that his discharge records indicated the wrong reason for separation. He was suffering from PTSD and an audio processing disorder, and he has never had a personality disorder. His treatment allowed him to face his wrongful diagnosis and that his wrongful diagnosis by the Army psychiatrist aggravated his PTSD symptoms which should have been his actual diagnosis in 2004. c. In 2021, he underwent a new PTSD treatment called the stellate ganglion block procedure. The procedure was extremely helpful. d. Since the Stellate Ganglion Block cannot cure a personality disorder, it is clear that he does not have a personality disorder. In fact, the symptoms he was suffering from always aligned better with PTSD than borderline personality disorder but was in no position to argue because while deployed he also developed bilateral sensorineural hearing loss which is a recognized condition for medically unexplained Chronic Multi-Symptom Illness falling under the "organic diseases of the nervous system. This audio processing disorder combined with the effects of PTSD (both which began during his deployment), made communication exceedingly difficult. With fewer PTSD symptoms, he is better able to function though communication is still difficult. 3. The applicant underwent a medical examination on 8 February 2002 for enlistment purposes. His DD Form 2808 (Report of Medical Examination) shows he qualified for service without defect and assigned a physical profile of 111111. A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 4. The applicant enlisted in the Regular Army for a period of 4 years on 19 March 2002. 5. The applicant entered active service at Fort Jackson, SC. He completed basic combat training (BCT) and was transferred to Fort Gordan, GA for advanced individual training on 31 May 2002. He completed his required training and was awarded military occupational specialty 31F (Mobile Subscriber Equipment Network Switching Systems Operator-Maintainer). He was transferred to Fort Bliss, TX for permanent duty effective 14 November 2002. 6. A DA Form 4856 (Developmental Counseling Form), dated 28 July 2004, shows he was counseled for proposed separation under a Chapter 5-13 in accordance with his Mental Evaluation for a personality disorder and dysthymic disorder on 23 July 2004. a. According to his mental health care provider, his behavior and mental status do not allow for continued military service. His is not authorized to carry a weapon or any sharp objects for fear of endangering himself or others, and they just cannot keep him with this chain of command. b. He was counseled in accordance with Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 1-16 for his conduct as set forth above. Separation action may be initiated under AR 635-200 if this conduct continues. Such a separation action may result in a characterization of service as Uncharacterized, Honorable, General, of Under Other Than Honorable Conditions (UOTH). If he receives an UOTH discharge, he would not be eligible for payment of accrued leave, wear of the military uniform, admission to a soldier's home, civil service retirement credit, civil service unemployment compensation and naturalization benefits. Also, he might not be eligible for many other important veteran benefits. If he receives a general discharge, he would not be eligible for civil service retirement credit and might not be eligible for unemployment compensation and certain other benefits. If he receives an honorable discharge, he would be entitled to all benefits. If he receives an uncharacterized discharge, he may not be eligible for benefits. If he receives less than an honorable discharge, he can expect to encounter significant prejudice in civilian life. Any early separation action might result in recoupment of unearned enlistment bonuses, a loss of G.I. Bill or VEAP educational benefits, and no separation pay, if otherwise qualified. c. He was instructed to attend all chapter appointments to ensure he has the maximum time to out process the military. d. He agreed to the counseling and indicated with his signature he did not wish to be rehabilitated and desired separation from the military. 7. A DA Form 3822-R (Report of Mental Status Evaluation), Dated 6 August 2004, shows a mental status evaluation was conducted for the applicant being considered for discharge because of personality disorder and request discharge for the good for the service. a. His behavior was normal. He was fully alert and orientated. His mood was unremarkable. His thinking process was clear with normal thought content and good memory. He was found to have the mental capacity to understand and participate in the proceedings, was mentally responsible and meets retention requirements. His potential for self-harm was low. b. Evaluation consisting of clinical interview, medical work-up, substance-use assessment, occupational testing, observation and psychometric testing indicates the applicant cares the diagnosis of adjustment disorder with depressed mood and personality disorder (not otherwise specified (NOS)). c. He was referred for mental health services and recommended for modified duty and not to have access to weapons/live ammunition. He was psychiatrically cleared for separation processing. d. He does not have a severe mental disorder and is not considered mentally disabled. However, he manifests a long-standing disorder of character, behavior and adaptability that is of such severity so as to preclude adequate military service. Although not currently at significant risk for suicide or homicide. due to these life-long patterns of maladaptive responses to routine personal and/or work-related stressors, he may become dangerous to him or herself or others in the future. e. It is the professional opinion of the evaluator that the applicant’s problem will not respond to Command efforts at rehabilitation (such as transfer, disciplinary action, or reclassification) nor to any treatment methods currently available in any military mental health facility. f. The service member was recently admitted to WBAMC ward 11W, inpatient psychiatry, due to safety concerns arising in the context of unit difficulties. Clinical evaluation reveals history of irritability, mood lability and behavioral problems. His longstanding difficulties with mood and behavior preclude adequate military service. It is recommended that command expeditiously discharge him under provisions of Chapter 5-13 (Personality disorder). At time of discharge from ward 11W the applicant is free of suicidal or homicidal ideation, plan or intent. He is cleared for any administrative action deemed appropriate by command. It is additionally recommended that the service member follow up at Community Mental Health, Fort Bliss, until such time as he is separated from active military service. 8. On 11 August 2004, the applicant signed a waiver to consult with an attorney, acknowledging the following statement with his signature: Having been afforded, the opportunity to consult with an attorney concerning the separation proceedings pending against [him], [he] decline[s] to do so at this time. [He has] been advised of [his] rights to submit a statement in [his] behalf. [He has] further been advised of [his] discharge benefits and education benefits. [He understand[s] that by signing this waiver does not mean that [he] cannot see a Trial Defense attorney if [he has] any questions prior to [his] separation. 9. A legal review was conducted, and the applicant’s separation package was found legally sufficient on 11 August 2004. 10. On 12 August 2004, a Recommendation for Administrative Separation under the provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), Chapter 5-13, shows the applicant’s commanding officer recommended him for separation before the expiration of his term of service with an honorable characterization of service. Specifically, the applicant has been diagnosed by a clinical psychiatrist as having an adjustment disorder with a depressed mood and a personality disorder. Further, the psychiatrist who evaluated him believes that his condition will not respond to Command efforts at rehabilitation nor to any treatment methods currently available in any military mental health facility. 11. The applicant was notified of the initiation of separation processing on 12 August 2004. He was advised of his rights to consult with military counsel and/or civilian counsel at no expense to the Government within a reasonable time (not less than 3 duty days) and obtain copies of documents that will be sent to the separation authority supporting the proposed separation. He acknowledged receipt the same day and submitted his elections. 12. The applicant’s separation was approved on 15 August 2004 with an honorable character of service. He would not be retained in the Ready Reserve and would be assigned a reentry code of RE-3. 13. The applicant was honorably discharged on 20 August 2004, under the provisions of AR 635-200, paragraph 5-13 for personality disorder. His DD Form 214 shows he was assigned the separation code JFX. It also shows in Item 18 (Remarks) service in Kuwait from 14 February 2003 to 15 September 2003. He completed 2 years, 5 months, and 2 days of active service. 14. The applicant provided the following: a. A PTSD Checklist, dated 25 June 2021, showing his responses to 20 questions and his score. b. A patient receipt for an unknow procedure or condition, dated 12 December 2022. c. A letter of support from K_ L_ stating she has known the applicant since high school and participate in the same activities. She indicates his behavior and social interactions have changed since his time in the Army. d. A letter of support from D_ L_ stating he has known the applicant since high school and have worked together in a professional setting. He indicated the applicant’s behavior was different when he returned from the Army, specifically with his social interactions. e. A patient care summary, dated 3 April 2019, showing treatment for bilateral hearing loss. f. An informational document entitled Stellate Ganglion Block Treatment for PTSD at VA, describing a treatment for an injection in the bundle of nerves located near the base of the neck called the stellate ganglion. 15. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 16. Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 17. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 18. MEDICAL REVIEW: a. Applicant is applying to the ABCMR requesting a narrative reason and separation code change of his Honorable discharge. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed application and supporting documents, ABCMR Record of Proceedings (ROP), separation military documentation, and the VA electronic medical record. b. Due to the period of service, there are no active duty electronic medical records available for review. The applicant’s service record reveals that he was psychiatrically hospitalized due to safety concerns arising in the context of unit difficulties. An inpatient BH treatment provider recommended that the applicant be expeditiously discharged under provisions of Chapter 5-13 for a personality disorder. The applicant was seen for a Chapter 5-13 Mental Status Evaluation on 6 August 2004 that listed diagnoses of Adjustment Disorder with Depressed Mood and Personality Disorder NOS and cleared the applicant for separation. c. The VA medical record reveals that the applicant is 90% service connected to include 50% for PTSD. d. After review of all available information, the record reveals that the applicant was discharged for a Personality Disorder at the recommendation of BH. While the applicant was diagnosed in service with an Adjustment Disorder and is service connected by the VA for PTSD, neither of these conditions mitigate the separation for a Personality Disorder, which complied with the separation regulations at the time of the discharge. However, the separation regulations have changed since the applicant’s discharge, so it is recommended that the applicant’s discharge be changed to a Chapter 5-14, Other Designated Physical or Mental Condition. Kurta Factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. Adjustment Disorder and PTSD. (2) Did the condition exist or experience occur during military service? Yes. The applicant was diagnosed in service with an Adjustment Disorder and is service connected by the VA for PTSD. Service connection establishes that the applicant’s PTSD existed during military service. (3) Does the condition or experience actually excuse or mitigate the discharge? No. While the applicant was diagnosed in service with an Adjustment Disorder and is service connected by the VA for PTSD, neither of these conditions mitigate the separation for a Personality Disorder, which complied with the separation regulations at the time of the discharge. However, the separation regulations have changed since the applicant’s discharge, so it is recommended that the applicant’s discharge be changed to a Chapter 5-14, Other Designated Physical or Mental Condition. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was partially warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. a. The evidence of record shows the applicant was honorably discharged on 20 August 2004, under the provisions of AR 635-200, paragraph 5-13 for personality disorder. His DD Form 214 shows he was assigned the separation code JFX, after completing 2 years, 5 months, and 2 days of active service. b. The evidence also shows the applicant was diagnosed in service with an adjustment disorder and is service connected by the VA for PTSD. Service connection establishes that the applicant’s PTSD existed during military service. While the applicant was diagnosed in service with an adjustment disorder and is service connected by the VA for PTSD, neither of these conditions mitigate the separation for a personality disorder, which complied with the separation regulations at the time of the discharge. However, the separation regulations have changed since the applicant’s discharge, so the Board determine, while the applicant did not have a boardable medical condition that warranted his entry in the disability system, his discharge should be changed to a Chapter 5-14, Other Designated Physical or Mental Condition. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :xx :xx :xx GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 to show he was separated under AR 635-200 due to Other Designated Physical or Mental Condition, Separation Code JFV. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to a disability separation. 1/9/2024 I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) provides the basic authority for the separation of enlisted personnel. Paragraph 5-13, of the regulation in effect at the time of the applicant's separation, states a Soldier could be separated for personality disorder (as determined by medical authority), not amounting to disability under Army Regulation 635-40 (Disability Evaluation for Retention, Retirement or Separation), that interfered with assignment to or performance of duty. The regulation required that the condition be a deeply-ingrained maladaptive pattern of behavior of long duration that interfered with the Soldier's ability to perform duty. The diagnosis must have concluded that the disorder was so severe that the Soldier’s ability to function in the military environment was significantly impaired. 3. AR 635-5-1 (Personnel Separations - Separation Program Designators (SPD)) prescribes the specific authorities (regulatory, statutory, or other directives) the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. It shows: • AR 635-200, paragraph 5-13 – Personality Disorder – JFX (JMB) • AR 635-40 (Personnel Separations - Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24e(3) – Physical Disability with severance pay – JFL • AR 635-40, paragraph 4-24e(4) – Physical Disability without severance pay – JFR • AR 635-40, paragraph 4-24e(6) – Disability not in line of duty – JFP 4. Title 10, USC, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 5. Title 38 USC, section 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 6. Title 38 USC, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 7. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 8. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 9. Section 1556 of Title 10, USC, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 10. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 11. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. 12. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. //NOTHING FOLLOWS//